Sunday, June 16, 2013

Prediction: DOMA and Prop 8

May as well go on record predicting the outcome of the same sex marriage cases: The Court in Hollingsworth v. Perry will dismiss the challenge to Proposition 8 on standing grounds, leaving gay marriage in place in California. In Windsor v. United States it will strike down DOMA on full faith and credit clause grounds, leaving same sex marriage up to the states. Justices Scalia and Ginsburg will be in the majority in both cases. - GWCScorecard: Well, OK on Prop 8 (which was pretty much the prevailing view), with Scalia and Ginsburg in the majority. But on DOMA my off the top of the head opinion was wrong: plaintiffs attacked only federal benefits, did not raise full faith and credit. The decision was a confusing welter of due process and equal protection, crafted to avoid broad implications. [Compare the 2d Circuit opinion's lucidity*.] Ginsburg of course was in the majority but Scalia was apoplectic in dissent.Looking forward see the New Jersey Law Journal Editorial Board's A Way Forward on Voting Rights, and the call for Gov. Christie to withdraw his veto of the gay marriage bill passed by the Legislature - Rights and Benefits Denied.Disclosure: I am a member of the Editorial Board of the NJ Law Journal

*Our straightforward legal analysis side-steps the fair point that same-sex marriage is unknown to history and tradition. But law (federal or state) is not concerned with holy matrimony. Government deals with marriage as a civil status — however fundamental — and New York has elected to extend that status to same-sex couples. A state may enforce and dissolve a couple's marriage, but it cannot sanctify or bless it. For that, the pair must go next door.